The title of this post relates not to the shockingly long interregnum since my last, but to the news in today (via Jaime Craig, psychologist and member of the Family Justice Council) that the long heralded adjustments to the FPR relating to the instruction of appropriate psychological experts, have been approved and are about to come into force.

There are a couple of important points of detail to note from the SI that brings these into being:

• Firstly, they come into force on 20 July, but ONLY for cases commenced after this date. So there will (should) be no messing around trying to unpick directions and instructions approved in existing cases. Pragmatically, that seems sensible in order to avoid a deluge of additional work. As a matter of principle I’m less convinced. But as any fule know: pragmatism and principle co-exist with increasing difficulty in the resource-starved family court.
• Secondly, the adjustments don’t just relate to psychological experts but they are carefully worded so as to avoid accidentally outlawing other sorts of expert witness (for example ‘technical’ experts, such as those relating to digital forensics, dna, hair strand testing and the like.
• Thirdly, they are not an outright ban on unregulated experts – but they are as close as one can get without saying ‘never say never’. There are important safeguards around the potential exception to the rule – an unregulated expert may ONLY be instructed where there is NO regulated one available or the delay caused by waiting for one to be found/available would be contrary to the welfare of the child. AND, any judge making such a decision must record written reasons for such a decision, including what attempts have been made to identify a compliant expert, AND the basis upon which it is said that the unregulated expert does or will meet the general standards set out in PD25B. I imagine someone, somewhere will have a try to get past these hurdles, but they are likely to be sufficient warning signs to persuade most to turn back.
• Finally, and slightly off topic, within the SI there is a weird amendment relating to communication of information from Financial Remedy proceedings, which is either entirely pointless or delightfully, pedantically, technical, depending on your perspective. New 9.47 explicitly enables the creation of PD9B (which already exists and is referred to in FPR 9.46). The only purpose I can think of for this amendment is that 9.46 is an expression of what the Rules Committee have done by way of PD, but does not explicitly set out the power to have done it.

Whilst cross checking that last point about FPR 9.46 and 9.47 I noticed that some parts of the FPR which are accessible at Justice.gov.uk are now showing as Archived in 2021, under a National Archives banner (which suggests they are not being maintained). Although I’d not noticed this before since all the pages I’ve been referring to seem to have been updated since 2021 (eg PD12R), it seems likely this has been the case since 2021, which is around the time that this resource was unceremoniously withdrawn, before the then minister responded to our vociferous complaints and reinstated it whilst an alternative was (allegedly) being developed on gov.uk. That it should (again) be unclear whether the only free public access source of the rules which govern family proceedings (which many litigants in person will need to have access to, and which presumably the AI they are now all consulting draw their ‘knowledge’ from), is or is not up to date and accurate – is all a bit unsatisfactory…I’ve seen neither hide nor hair of the proposed replacement on gov.uk. Whilst we lawyers can (if we are able and willing to fork out a grand or so) consult the red book, this does not assist litigants in person or the public in general. Trying to work out what procedure rules say by tracking back through unconsolidated SIs is time consuming and fraught with the risk of mistake, and for a non-lawyer practically impossible. Whilst ministers are busy tasking civil servants with the development of tools to divert as many litigants from court as is humanly possible (a good thing), what about access to justice for those who cannot be diverted or who are dragged to court at the behest of another, who will not be deterred?